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
to be wind-bound in our own Ports then to lanch forth into the wide Ocean of the Maritime Laws touching this Subject specially in an English Bottome having an eye to the Burden of the Vessel and for whose accompt this Cargo was first shipp'd whither bound and for whom consigned as also how disadvantageous it might prove for the Principals to have the returns of their expectation only in the Arbitrary altercations of cross-opinions rather then in such stapletruths of the Law as are not only currant in all the Navigable parts of the world but of most use and practice in the Admiralty of England For these reasons the Reader may expect only a taste of Admirall varieties and therein no more then may serve to excite his impatience after the excellency of that which in a set Treatise for this purpose might in its proper Dialect and due Latitude be emitted by an abler Artist All Maritime affairs are regulated chiefly by the Emperial Laws the Rhodian Laws the Laws of Oleron or by certain peculiar and Municipal Laws and Constitutions appropriated to certain Cities Towns and Countries bordering on the Sea within or without the Mediterranean calculated for their proper Meridian or by those Maritime Customes and Prescriptions or Perpetual Rights which are between Merchants and Mariners each with other or each among themselves This Maritime Government and Jurisdiction is by the King as Supreme as well by Sea as at Land concredited with the Lord high Admiral of England who next and immediately under the Prince hath the chief Command at Sea and of sea-Sea-affairs at Land This Lord high Admiral hath several Officers under him some of a higher others of a lower form Some at Land others at Sea some of a Military others of a Civil Capacity some Judicial others Ministerial Such as are Chief in the Judicial Capacity are in the Law known by the style of Magisteriani or Judges of Sea-faring debates and all Maritime controversies whereof one being the Judex ad quem in all Maritime causes of appeal from inferiour Courts of Admiralty is with us known by the style of Supremae Curiae Admirallitatis Angliae Judex within whose cognizance in right of the Jurisdiction of the Admiralty by the Sea-Laws the Laws and Customes of the Admiralty of England are comprized all matters properly Maritime or any way pertaining to Navigation The Judicial Proceedings wherein are Summary Velo Levato sine figura Judicii As by warrant of arrest or other Original Mandate Execution and Return thereof Interposition of Caution given by the arrested for his Legal Appearance according to the tenor of the said Warrant of Arrest Appearance and Introduction of Sureties by way of Stipulation or Judicial Recognizance in the summe of the Action de judicio sisti de judicato expensis solvendis cum ratihabitione Procuratorii as also the Plaintiffs caution to pay costs in case he fail in his suit Contempt in case of non-appearance and forfeiture of the said caution in case of such contempt offering the Libel in case of Appearance Litis contestation or joyning of issue Decree for the Defendants personal Answer upon Oath to the said Libel exhibited against him a Decree for a viis modis in case of a Non Inventus a Decree against the sureties to produce the party Principal in judicio Production of him accordingly his answer upon Oath to the Libel Production of Witnesses Compulsory against such Witnesses as will not appear without it Commission for examining of Witnesses at home or sub mutuae vicissitudinis obtentu beyond Sea The Oath of Calumny by both parties if they please Exception against the Witnesses The Supplementary Oath Exhibition of Instruments Publication of Witnesses Conclusion of the Cause Sentence Definitive Appeal made within fifteen days of the said Sentence Assignment ad prosequendum Prosecution of the Appeal Remission of the Cause to the Judge A Quo Decree for Execution and Sentence executed accordingly Beside the other way of proceeding by arrest of goods or of goods in other mens hands and so to a Primum Decretum as to the Possession upon four Defaults and thence after one year to a Secundum Decretum as to the Propriety in case of Nonintervention upon laying down the costs of the Prim. Decret in the interim In the Proceedings there may be also Reconvention also sequestration of goods lite pendente and sentence Interlocutory as well as Definitive with many other particulars which may or may not happen according as the Court sees cause and the merits of the Case require Within the Cognizance of this Jurisdiction are all affairs that peculiarly concern the Lord high Admiral or any of his Officers quatenus such all matters immediately relating to the Navies of the Kingdome the Vessels of Trade and the Owners thereof as such all affairs relating to Mariners whether Ship-Officers or common Mariners their Rights and Priviledges respectively their office and duty their wages their offences whether by wilfulness casualty ignorance negligence or insufficiency with their punishments Also all affairs of Commanders at Sea and their under-officers with their respective duties priviledges immunities offences and punishments In like manner all matters that cnocern Owners and Proprietors of ships as such and all Masters Pilots Steersmen Boteswains and other ship-Officers all Ship-wrights Fisher-men Ferry-men and the like Also all causes of Seizures and Captures made at Sea whether jure Belli Publici or jure Belli Privati by way of Reprizals or jure nullo by way of Piracy Also all Charter-parties Cocquets Bills of Lading Sea-Commissions Letters of safe Conduct Factories Invoyces Skippers Rolls Inventories and other Ship-papers Also all causes of Fraight Mariners wages Load-manage Port-charges Pilotage Anchorage and the like Also all causes of Maritime Contracts indeed or as it were Contracts whether upon or beyond the Seas all causes of mony lent to Sea or upon the Sea called Foenus Nauticum Pecunia trajectitia usura maritima Bomarymony the Gross Adventure and the like all causes of pawning hypothecating or pledging of the ship it self or any part thereof or her Lading or other things at Sea all causes of Jactus or casting goods over board and Contributions either for Redemption of Ship or Lading in case of seizure by Enemies or Pyrats or in case of goods damnified or disburdening of ships or other chances with Average also all causes of spoil and depredations at Sea Robberies and Pyracies also all causes of Naval Consort-ships whether in War or Peace Ensurance Mandates Procurations Payments Acceptilations Discharges Loans or Oppignorations Emptions Venditions Conventions taking or letting to Fraight Exchanges Partnership Factoridge Passagemony and whatever is of Maritime nature either by way of Navigation upon the Sea or of Negotiation at or beyond the Sea in the way of Marine Trade and Commerce also the Nautical Right which Maritime persons have in ships their Apparâ—â— Tackle Furniture Lading and all things pertaining to Navigation also all causes
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-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
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
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