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-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
ΣΥÎΗΓΟΡΟΣ ΘΑΛΑΣΣΙΟΣ A VIEVV OF THE ADMIRAL JURISDICTION WHEREIN The most material Points concerning that JURISDICTION are fairly and submissively Discussed AS ALSO Divers of the Laws Customes Rights and Priviledges of the HIGH ADMIRALTY of England by Ancient Records and other Arguments of Law Asserted WHEREUNTO Is added by way of Appendix an Extract of the Ancient Laws of OLERON By JOHN GODOLPHIN LL. D. Littusque rogamus Innocuum Virg. Aen. 7. LONDON Printed by W. Godbid for Edmund Paxton over against the Castle Tavern neer Doctors Commons and John Sherley at the Pellican in Little Brittain 1661. TO THE Reader HE that negotiates about Maritime Affairs is under Protection without Letters of safe Conduct as being within the Sanctuary of Jus Gentium and the right Timing of a Modest Address oft times proves more successful then a Confident Argument out of season There seems some probability as if this Treatise obtrudes not upon the world or thy patience like a Tract borne out of due time nor as if it came like a Physitian to his Patients Funeral or as Suetonius relates touching the Deputies of Troy sent to condole with Tiberius seven or eight moneths after the death of his sons If this Treatise be out of season others as well as my self are happily deceived in which case it will suffice to say with Philip de Comines That It is very hard for a man to be wise that hath not been deceived For the Method it is as Regular as the Arguments would afford though not so exact as might have been if the same Metal had been cast into another Mould yet not so rude and out of shape as to suspect from the disproportion of the Body that the Soul is ill lodged or like some long-breath'd confused Discourses of late much in fashion whereof it may be truly said as was once of the Romans two Ambassadours sent to one of their Provinces whereof one wounded in the Head the other lame in his feet Mittit Populus Romanus Legationem quae nec Caput nec Pedes habet and which for their prolixity and immethodicality may justly expect the same answer that those of Lacedemon gave the Samnites That they had forgotten the Beginning understood not the Middle and disliked the Conclusion The Subject-matter of this Treatise is not so much de jure as de jurisdictione Admiralitatis Angliae not so much touching the Law of the Admiralty or Sea-Laws as now received and practised in the Navigable parts of the world as in reference to the Jurisdiction of that Law within this Kingdome of Great Brittain So that it will on all hands be eafily agreed that the argument of Jurisdictions is Quaestio admodum Subtilis and no wonder if you consider That that which is de competentia Judicis Jurisdictionis is totius juris velut Obex repagulum But 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and zeal for the Publick facilitates the highest difficulties To leave the Laws sub incognito or Jurisdictions sub incerto are both of National ill consequence subjecting the people either to Transgression through Ignorance or to unnecessary expences by multiplicity of Law-Suits Lux Lex Veritas are almost Synonimous if either of these suffer though but a partial Eclipse how great is the darkness thereof If a Jurisdiction without which the Law is but as a dead Letter be uncertain how great is that uncertainty but the liquid and clear stating and ascertaining of Jurisdictions to their proper and respective Boundaries beyond which one may not pass to the invading of another is one of the primary Constitutions of Jus Gentium This short View of the Admiral Jurisdiction was in its Origination designed only to prevent a Vacuum inter alia negotia and not to hazard the Censure of a Superfluum inter aliorum otia And although a great part of this Fabrick be laid on a Foundation of Civil Law yet in regard it is an indispensable duty which every man owes his Native Countrey to keep as much as may be sub incognito from Strangers and Forraigners abroad what possibly may not be absolutely perfect for there is no perfection under the Sun quoad modum procedendi at home Sumus enim Surdi omnes in Linguis quas non intelligimus And in regard this Treatise must recite the very Letter of certain Clauses of several Acts of Parliament Transactions of State and Book-Cases of Common Law And in regard the satisfaction of Merchants and Mariners was the main motive and design of emitting this to the Opinions of men For these reasons it could neither properly nor profitably speak the Ideum of that Law which is no less adequate to the Admiralty then currant over all the Christian world The just Rights and Customes of the Jurisdiction of the Admiralty of England are here with submission asserted and consequently therein many of the Priviledges of Merchants and Mariners and not only of those who have a Birth-right to England's Laws of the Admiralty but also of all such who negotiating with us have a Right thereto by the Jus Gentium and National Treaties The Merchant is Bonum Publicum and such is that Nations Interest whose Merchants do flourish that to gratifie them with all possible immunities and due encouragement is now become the common policy of all such Kingdomes and States as reap more treasure from their Ports then Pastures It was most true what Seneca once said of them Mercator urbibus prodest Medicus aegrotis without whom a Communalty or Civil Society of men can scarce plentifully or honourably subsist It was a saying with Baldus that famous Civilian That the world could not live without Merchants Whence it may be rationally inferred That that Nation is nigh drowning whose Merchants are under water their Function being to import Necessaries and to export Superfluities If therefore such Marine Controversies as arise between Merchant and Merchant or between Merchant and Mariner should be removed from the Cognizance of the Admiralty whereof there is now no fear ad aliud examen it might prove no fallible Index but that our Trade and Commerce in too sad a measure might also in some short time after be exported ad aliam Regionem Here therefore is the Merchant and the Mariner insisting not for any thing more then what is according to the known Laws of the Land and the ancient established Sea-Laws of England with the Customes thereof so far as they contradict not the Laws and Statutes of this Realm It will not be denyed but That Jurisdictio originaliter radicata est in Principe ab eo descendunt Iudices sicut Rivuli à Fonte suo The decision of the Rights of Jurisdictions resides not in any persons of a private capacity but in that Power that creates and constitutes Jurisdictions that is the Prince or chief Magistrate as the Supream Source or Fountain of all Humane Laws and Judicatories Reader it seems something difficult to determine whether the Sophistication
full of that Office And so proceeds That in Rich. 2. it was brought to a Weldy that 's the Epethite it pleases him to afford it Model Being Uncertain rather then Infinite before as the said Authour is there pleased to determine For says he the Bounds were ever straighter much then some may imagine Also that they were again disputed in Henry the fourth Q. Elizabeth and King James And then he is pleas'd most facetiously to add That it lies more open to the Common Law then to the Wind. Yet withal he doth not there conceal but that besides the Laws of Arthur the Brittain and Edgar the Saxon we have some Records of Custome by Sea as well as by Land with Priviledge to some below the King before the Norman whom they make the Founder yet he was in the said Authours judgement but Patron of the Ports and Wardens of the Sea And the same Authour speaking of the Sea-statutes of Rich. 1. how that they were made de Communi probarum virorum Consilio refers to the very expression of the Charter it self in Hovenden Wendover or Matthew Paris who doth add that per Consilium Magnatum there were made Justiciarii super totum Navigium Angliae c. which with divers Records of Henry the third may be added to the Admiral or Saxon Aen Mere eal Over all the Sea To which much might be added from the Rolls of Hen. 3. and Ed. 1. But this that hath been said may suffice to satisfie some and convince others touching the Antiquity of the Office and Jurisdiction of the High Admiralty of England For the Utility of this Ancient Jurisdiction of the Admiralty in this Kingdome of Great Brittain if you have retrospect to the Honour thereof in Precedent Generations Antiquity can witness with what effectual success if not to the nonplus of Neighbour-Nations the Dominium Maris Brittanici hath been from Age to Age Judicially asserted If you consider the plenty and splendour of a flourishing Kingdome the present Generation cannot yet forget to give ample testimony thereof in reference to the Trade and Commerce of this Nation And if you will not be so irregular as to deny the Consequence that naturally flowes from these Premises you cannot but inferre this Positive Conclusion That the succeeding Generations are like to suffer as well an Eclipse of their Honour as an Abatement of interest without the influence of that Jurisdiction Insomuch as the late Cardinal save one of France did wisely according to the last cited Authour dispose or rather retain that Office as the best Jewel of that Kingdome which yet must yield to this But in a word the Jurisdiction of the Admiralty of England may not unaptly be compared to that Tree in the Island of Fierro being one of the Sept. insulae of the Canaries which as Historians tell us doth with the droppings of his leaves yield water for the sustenance of the whole Island It is farther added that the Moors having taken that Island from the Christians attempted to fell down that Tree but each blow recoyled on the striker The former part of this strange Relation with a small variation passes for a Truth as known unto and acknowledged by most of the Ancient Travellers and Geographers The other part being probably but a fabulous Addition To keep hands off has not as the other the Credit of an Application To conclude if this Chapter seems to a Genius more ratified by acuteness for Apprehension then endued with Patience for Expectation more prolix then may be regularly consistent with a Treatise only by way of Summary view let him only consider that where Eagle-eyes who are seldome dazeled with too much light are to be dealt with it may be less dis-ingenious to borrow a Point of Expatiation then to remain too much in debt to the Truth for want of room to display her Beams in 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 THere are but three things that seem specially to illustrate the splendour of a Jurisdiction viz. Sceptrum Majestatis or the Power and Legal Authority of the Prince as to the Constitution thereof Codex Administrationis or the Right Administration of Justice and Gladii potestas vel Gladius Executionis or the Coercive power That Jurisdictions thus constituted are inter Regalia Principum no person not dis-principled will deny So as what was long since the Law as to the Emperour in point of Jurisdiction within the Empire Imperator quoad Jurisdictionalia Dominus totius mundi appellatur is the same and as true in absolute Kings and Princes within their own Kingdomes Dominions Principalities and Territories And no wonder in that Kings and Princes tantum possunt in suo statu quantum Imperator in Imperio Some without lisping say that a King in his Kingdome hath a farre greater right and interest then the Emperour hath in the Empire for that a King is Loco Domini and his Kingdome is more assimilated unto hath a greater resemblance with that which is Dominiū properly so called then with that which is but simply Regimen The Emperour is not Proprietarius but chief Governour of the Empire And that only by Election not by Succession as the other Now as the Seas belong to Princes in respect of Jurisdiction and Protection So also in them properly resides the Right and Power of Commissionating Ministers of Justice for the due Exercise and Administration thereof in decision of all matters whether Civil or Criminal within their Cognizance according to the known Laws of the Sea not contradicting the Statute or Municipal Laws of that Kingdome or State whereof the said Prince is next and immediately under God Supreme As to Persons Maritime it might be considered who they are that more peculiarly are of Marine capacities and properly may be said to be within the Jurisdiction of the Admiralty what their Rights Priviledges and Immunities are and what their Office or Duty respectively is Likewise as to Things properly Maritime it might be considered either as they be in respect of the actions thence arising Civile and respecting only Commodum Privatum between party and party whether it be Contractus or quasi Contractus either by any Perpetual known Rights or by some Casual Occurrence Or Criminal and respecting the Fiscus in reference ad utilitatem Publicam but that the design of this Treatise is not to expatiate in the Law on any of these but only as most adequate to a Summary view of the Admiral Jurisdiction to touch quasi in transitu what referres to each of these under its own proper head and no farther then may be of use for the clearer discovery of the subject matter of the Jurisdiction of the Admiralty of England without engaging into Controversal points chusing rather in a Treatise so compendious
districtum Maris vocat The Straights of Gibralter infra Jurisdictionem Maritimam And because it appeared That the Contract was made at the Island of Malaga Prohibition was granted for it was not regarded that he added infra Jurisdictionem Maritimam which appeared contrary If in another Case it happen to be elsewhere supposed that the Contract is made at Burdeaux in France in Islington though by the very light of nature it appears as soon as it is put to be contrary yet there may be that reason of Law to hold the place is not traversable as to the Infra Corpus Comitatus which the Infra Jurisdictionem Maritimam cannot duly expect when that appears to be contrary It was once said by Justice Wray in Sir Julius Caesars Case That it was hard that his Jurisdiction should be tryed before himself It hath been observed for these last twenty years that it is far more easie to preach good doctrine then to practise it The Law in all Jurisdictions is but Reason Regulated No wonder therefore if sometimes a Cause as to the Merits of it meet with a right Decision in a wrong Jurisdiction but less wonder if it oftner happeneth otherwise It is reported in the Case of Bright against Couper That an Action of Covenant being brought upon a Covenant made by a Merchant with a Master of a Ship viz. That if he would bring his Fraight to such a Port then he would pay him such a summe it was shewed that part of the goods were taken away by Pyrats and that the residue of the goods were brought to the place appointed and there unladen And that the Merchant had not paid and so the Covenant broken And the question was whether the Merchant should pay the mony agreed for since all the Merchandizes were not brought to the place appointed And the Court was of opinion that he ought not to pay the mony because the Agreement was not by him performed Here is no mention made of a penny-fraight paid for the residue of the goods brought to the place appointed albeit there was Vis major or Casus Fortuitus without any default in the Master or Mariners in the Case the Court being of opinion that he ought not to pay the mony because the Agreement was not by him performed nor had it been performed in case of stress of weather part of the goods had Navis Levandae causa been thrown over-board probably this Pyracy whereby came this casual incapacity of performing the Agreement was Super altum mare And the same Reporter in Westons Case A Merchant hath a Ship taken by a Spaniard being enemy and a moneth after an English Merchant with a Ship called the Little Richard re-takes it from the Spaniard And the Owner of the Ship sueth for that in the Admiralty Court And Prohibition was granted because the Ship was gained by battel of an enemy Probably this Capture and Re-capture the occasion of this plea and querele was only Super altum mare and the property of Shipping called into question by reason of such supermarine accidents the matter of this plea and querele is of every days practice in the Admiralty and so accustomed time out of mind But at another time in a Case something parallel to that quoad merita Causae super altum mare A Prohibition would not be granted A Dunkirker having seised a French mans Vessel Super altum mare sold the same with her Lading at Weâ—mouth whither it had been driven before its brought infra praesidia Dom. Regis Hispan whereupon the French man Libelled in the Court of Admiralty against the Vendee pro interesse suo who shewed that it was taken not by Letters of Mart as was pretended but by Piracy And prayed a Prohibition And it was agreed by the Justices That if a Ship be taken by Piracy or by Letters of Mart and be not brought infra praesidia of that Prince by whose subject it was taken that it is no lawful Prize and the Property is not altered and such was said to be the Law of the Court of Admiralty And therefore the Court would not grant a Prohibition In the former Case where Prohibition was granted the property of the Ship seems not to be altered for though she were as that Case puts it taken by an Enemy and a moneth intervened between the Capture and re-Capture and so did pernoctare with the Captors yet it does not appear by that Case that she was ever brought infra praesidia hostium before such re-capture or that ever Judication passed thereon And if there were any alteration of Property of that ship the Property must have been altered Super altum mare which is properly Cognizable in the Admiralty in respect of the Place as well as the thing it self in its own nature Littleton that Famous Oracle of the Law as aforesaid asserts That a thing done out of the Realm may not be tryed within the Realm by the oath of twelve men The Lord Coke as aforesaid acknowledgeth That the Lord Admiral hath and ought to have Jurisdiction of Contracts pleas and quereles made upon the Sea or any part thereof not within any County And Sir George Crook says That if a Suit be commenced in the Court of Admiralty upon things done upon the Sea no Prohibition is to be granted Therefore it follows that Contracts made and other things done upon the Sea are 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 IF the Jurisdiction of the Admiralty in this point should seem to be pretermitted or waved by saying that Bargains and Contracts made beyond the Seas wherein the Common Law cannot administer Juflice do belong to the Lord High Constable and Earl Marshal of England It might seem tacitely to imply as if Charter-parties Bills of Lading Cockets Invoyces Commissions of Mart Marine Consortships and other Contracts or things made or done beyond Sea touching Trade and Navigation were not within the Conusance of the Jurisdiction of the High Admiralty of England Whereas it is well known That they are only Contracts and Deeds of Arms and of War and the like out of the Realm that do properly belong to the Lord High Constable and Earl Marshal of England and the like within the Realm whose Jurisdiction is of a distinct and diversified nature both from that of the Common Law and of the Admiralty also It is said That if an Indenture Bond or other Specialty or any Contract be made beyond Sea for the doing of any Act or payment of mony within the Realm or otherwise wherein the Common Law can administer Justice and give ordinary remedy In these Cases neither the Constable and Marshal nor the Court of Admiralty hath any Jurisdiction So that the Admiralty seems hereby to be of little use as to
Sea For the difference may be material In the Case of Palmer against Pope it is reported That the Statute saith ad primâ—s pontes And in the Case of Leigh and Burley It is said that the 15 of R. 2. is mis-printed viz. that the Amiral shall have Jurisdiction to the Bridges for the Translator mistook Bridges for Points that is to say the Lands end So reported in the said Case The words of the Statute are viz. In the main stream of great Rivers only beneath the c. of the same Rivers nigh to the Sea and in no other places of the same Rivers the Admiral shall have cognizance It is not denyed by the Statute but the Admiral hath Jurisdiction in Cases of Mayhem and Death in the main stream of great Rivers Rivers are not found beneath the Lands end if Bridges be mistaken by the Translator for Points and Points be taken for the Lands end then Rivers and the main stream of great Rivers should be beneath the Lands end where they empty themâ—elves into the main Ocean Again the words of the Statuâ—e are In the main stream of great Rivers only beneath the c. And the words in that Caâ—e of Leigh against Burley are That the Admiral shall have Jurisdiction to the c. question is whether there also be a mistake in the Translation For the difference is great and very significant between to a place and beneath a place In the said Case of Leigh against Burley it is said That the Statute of 15 R. 2. is mis-printed yet probably the Press followed the Copy and in so doing it may be excused from an errour of mis-impression In the said Case it is also said That the Translator mistook Bridges for Points that is to say the Lands end A right impression of a mis-translation if any such be seems not to render the word Bridges in stead of Points or Lands end as mis-printed so long as the Press agrees with the Copy Pons in the Latine rendred into English seems rather to be a Bridge then Points or a Lands end Pons in the Latine sounds more like Points then Bridge and so doth Pont in the French which yet is a Bridge and not Point or Lands end which in the French seems to be more properly rendred by the word La poincte or un poinct But a Point of Land at which Rivers or Waters meet seems to be most properly rendred by the word Bec in the French which seems sufficiently dissonant from the word Points And those Navigators that by experience know the meaning of doubling the Point probably do â—eldome sail over Rivers either great or small beneath such Points But this only by way of observation upon the said mistake as reported in the â—aid Case of Leigh against Burley and not in the least by way of any thing else in reference to what is not of any private interpretation but reserved only for â—uch as unto whom are specially committed the Oracles of the Law The Assertion That it is not held material whether the Place be upon the Water infra fluxum refluxum maris but whether it be upon any water within any County was formerly hinted yet possibly it may be material to know what waters are held to be within a County specially if the question put by Doderidge Serjeant in the same Case of Leigh against Burley be duly considered In which Case it is reported That the Lord Coke said That the Admiral should have no Jurisdiction where a man may see from one side to the other but the Coroner of the County shall inquire of Felonies committed there which was held to be good by all the other Justices And he gave this difference that where the Place was covered over with Salt-water and out of any County or Town there est altum mare but where it is within any County there it is not altum mare but the tryal shall be per Vicenetum of the Town Doderidge Serjeant demanded this question The Isle of Lunday de Corpore Comitatus of Devonshire and lyes twenty miles within the Sea whether is that within the County Foster If the Sea there be not of any County the Admiral hath Jurisdiction or else not In this Case it is said that the Admiral hath no Jurisdiction where a man may see from one side to the other which in a transparent Horizon a man may do from the Lands end to the Cassiâ—erides or Isles of Scilly which lye seven Leagues at least thence distant in the main Ocean and almost the like from some part of England to the other side the water over to France The said Isles of Scilly are de Corpore Comitatus Cornubiae yet doubtless the high Admiral of England notwithstanding both sides are mutually visible hath Jurisdiction on the interflux there though the said word within should be taken in a sense as large as the Ocean it self And whereas it is said that the Admiralty hath not any Jurisdiction of Contracts Pleas or Quereles made or done upon a River Haven or Creek within any County of this Realm probably it is not thereby meant or intended to be limited or restrained otherwise then according to the Statute-Law the Laws and Customes of the Realm whereof those of the Sea are a part the Realm of England consisting of more elements then one And if you consult the Topography of several of the Harbours Havens Ports Rhodes Bayes Sounds and Creeks of this Kingdome probably the Admiralty might have in more senses then one a more liquid demonstration then so to be disjuriâ—dictioned by any meer supposition which had no small operation to the prejudice of the Admiralty in the days of the late Licentious Times when fancies were much in fashion thereby reducing Jurisdictions to uncertainty the common fate of all things in the said days of Legerde Brain but especially to the needleâ—s protelation of Justice as to Merchants and Mariners in the Legal prosecution of their Maritime Contracts notwithstanding the Resolutions upon Cases of Admiral Cognizance subscribed by all the Reverend Judges and Justices of both the Honourable Benches in the Eighth year of the Reign of our late Soveraign Charles the First of blessed Memory wherein among other things relating to that Jurisdiction it was then unanimously resolved That in Cases arising upon the Thames the Admiralty hath Jurisdiction specially in the point mentioned in the Statute of 15 R. 2. And by Equity thereof may inquire of and redress all annoyances and obstructions in those Rivers that are any impediment to Navigation or passage to or from the Sea and in all Navigable Rivers And no Prohibition to be granted But in the Case of Goodwin against Tompkins it seems something otherwise According to the Report the Case was this A Suit was in the Admiral Court for setting a Ship in a Wharf to the damage of the Plaintiff So that none could come to his Wharf which is said within
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
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
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
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
being thereby excluded the Cognizance of such Maritime Contracts both sides the water must keep to Sea in all weathers yet scarce retain the libert if I may so say of a confinement Super altum mare according to the energy of that suggession reported in the Case aforesaid of Susans against Turner where it is said That if a Suit be commenced in the 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 Prohibition According to which comnutation with the premises considered the Jurisdiction of the Admiralty seems to be hard put to it both by Sea and Land Nor need it seem any thing strange that the Jurisdiction of the Admiralty seems excluded of Cognizance in such cases of Charter-parties whether made at Land or beyond Sea if a bare Surmize or Suggestion according to the â—aid Report in the Case of Susans against Turner may work as to a Prohibition against the Admiralty when a Suit is there commenced for a Contract not appearing other then made Super altum mare According to these premises if the Charter-party be made at Land though to be performed upon or beyond the Seas it is to be tryed in the ordinary course of the Common Law And if the Contract be made beyond Sea for doing any act within the Realm c. the Court of Admiralty hath not any Jurisdiction thereof And if the Suit be commenced in the Admiralty for a Contract supposed to be made upon the Sea then by a Surmize or Suggestion that it was made upon the Land a Prohibition according to the said Case may be had Thus in matters of Charter-party this side the Sea the Common Law seems to claim the Cognizance in Contracts made beyond Sea the Admiralty seems not to be allowed any Jurisdiction and in Contracts supposed to be made upon the Sea the Defendant upon a Surmize may have a Prohibition But no Fiction can spunge the Ocean nor turn the Sea into dry Land or the Bay of Mexico into Middlesex till it be proved as well as surmized In the said Case of Susans against Turner where it is said If a Suit be in the Admiral Court for a Contract supposed to be made Super altum mare the Defendant upon a Surmize that it was made upon the Land within the Realm may have a Prohibition It is there farther added in these words viz. And that it may come in issue if it was upon the Land or upon the Sea But by the Justices their Rule is that upon such a Suggestion they shall not grant a Prohibition after Sentence pass'd So that be the verity of the Fact as to the Super altum mare in it self never so liquid yet being primarily but supposed as all things in judicio though in themselves never so clear never so true yet must be alledged before the Court can proceed a Counter-supposition or Crosssurmize may work according to this as to a Prohibition to bring it in issue whether it was upon the Land or upon the Sea And so it seems as if scarce possible in any Case to avoid a Prohibition for the reallest Truths and the undenyablest verities under the Sun if in judicio foro contentioso can be at first but supposed truths for the Court if it proceed Legally cannot but proceed Secundum allegata first Probata next Charter-parties Bills of sale of Ships and the like Maritime Contracts are commonly made according to the Law of Oleron and frequently wicâ— a clause express to that purpose inserted therein the Civil Law the Laws and Customes of the Sea whereby the Admiralty proceeds takes notice thereof and can judge and determine accordingly how far other Laws that are accommodated to matters of another element though in themâ—elves and in their proper sphere most excellent can do the like is no part of the design of this compendious Treatise to determine But that Prohibitions have been granted upon Charter-parties is undenyably true Yeâ— the lamentable Cases of poor Mariners for their Wages have not of late unhappy years escaped Prohibitions although it be not denyed but they may all joyn in one Libel in the Court of Admiralty whereas at the Commoâ— Law if they must there prosecute they may not bring their Actions otherwise then severally and apart to their greater expence and charges respect being not had to the identity of the Case or the poverty of the Demâ—ndants to introduce a joynt Action To this purpose it is reported That where judgement was given in the Court of Admiralty against one Jones a Master of a Ship at the Suit of certain poor Mariners for their wages a Prohibition was prayed upon a Suggestion that the Contract was made at London in England but the Prohibition was denyed because he had not sued his Prohibition in due time viz. before a Judgement given in the Court of Admiralty Whereby it seems as if it was not the nature of the Case though for Mariners wages that prevented the Prohibition but the unseasonable suing for it viz. After Judgement given in the Court of Admiralty Touching the Jurisdiction of the Admiralty in ontracts made and other things done upon the Rivers beneath the first Bridges next the Sea where it ebbs and flows and in the Ports Creeks Havens Peers Sounds Harbours Rhodes Bayes Channels and other places infra fluxum refluxum maris It hath been asserted That by the Laws of this Realm the Court of Admiralty hath no Cognizance Power or Jurisdiction of any matter within any County either upon Land or Water So as it is not held material whether the place be upon the water infra fluxum refluxum maris but whether it be upon any water within any County And it is farther added That for the death of a man and of Mayhem in these two Cases only done in great Ships being and hovering in the main stream only beneath the Points of the same Rivers nigh to the Sea and no other place of the same Rivers nor in other Causes but in these two only the Admiral hath Cognizance yet probably it will not be denyed but that by Exposition and Equity of the Statute of 15 R. 2. cap. 3. whence as supposed that assertion is taken he may inquire of and redress all annoyances and obstructions in those Rivers that are any impediment to Navigation or passage to or from the Sea and also try all personal contracts and injuries done there which concern Navigation upon the Sea And no Prohibition is to be granted in such Cases The Reader may at his leisure consult the said Statute whether it says In the main streams only beneath the Points of the same Rivers nigh to the Sea or whether the Statute doth not say In the mâ—in stream of great Rivers only beneath the Bridge of the same Rivers nigh to the
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
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